BY-LAWS IN MOTION
A WORKSHOP FOR THE
PARLIAMENTARY SOCIETY OF TORONTO
CHAPTER 51, AMERICAN
INSTITUTE OF PARLIAMENTARIANS
PRESENTED NOVEMBER 4, 2003
BY HENRY MILLER
PART 1
USEFUL OBSERVATIONS ON BY-LAW DRAFTING AND REVISION
TYPICAL–NON PROFIT ORGANIZATION
INCORPRATED IN ONTARIO
RONR should be used with care.
As Eli Mina, a Canadian parliamentarian, observed at a Toronto seminar in
March, 2003, many lawyers are reluctant to specify it as the parliamentary authority
because it is so minutely prescriptive.
A set of by-laws can just allude to principles of parliamentary law as
its authority for procedure. One difficulty with this, however,
is that in the case of a complicated issue several and sometimes conflicting
authorities could be cited.
However, by-laws rank in the
hierarchy of corporate documents as follows:
1. Governing Law - Corporations Act
(Ontario) (for businesses see Ontario Business Corporations Act)
2. Letters Patent and amendments
thereto, made from time to time
3. By-law (commonly referred to as
"the by-laws")
4. Special Rules of
Order adopted specifically by the organization
5. Parliamentary Authority -
e.g. RONR (10th ed.)
6. Standing Rules - relate to the
administration of an organization rather than to (parliamentary) procedure:
commonly known as "Policies and Procedures"
Usually, when revising the
by-law of an organization, the best approach is to develop and adopt an
entirely new by-law which supersedes the old one. The new by-law is
usually adopted by the Board of Directors and ratified by the membership of the
organization at a special meeting of the members called for the purpose but
which may be combined with the annual meeting as an "Annual and Special
Meeting"
For a registered charity, the new
by-law will have to be submitted to the Canada Customs and Revenue Agency
["CCRA"] and CCRA should be consulted during the revision process.
Also, sometimes, depending on what
specific legislation the organization operates under, the regulator or chief
funder of the organization needs to approve the new by-law.
For an Ontario corporation the
Ministry of Consumer and Business Services should be consulted as to the most
current filing/approval requirements. The
same Ministry is a very useful source for obtaining a copy of the letters
patent and revisions in the form of revised letters patent. Note that for federally incorporated
organizations Industry Canada is the Department to consult.
In addition, if an agency is a
member of an accrediting umbrella organization such as the United Way or
Catholic Charities consultation with the accrediting agency is advisable to
ensure the proposed new by-law meets standards for ongoing accreditation and
membership review.
Finally, a legal review of the
by-law is advisable.
As a starting point for a committee
charged with revising a by-law, a good suggestion is to brainstorm to decide
what is out of date or confusing in the current by-law and what the committee
might like to see as positive changes, in the light of the ongoing evolution of
the organization.
Finally, excellent overall guidance
on governance, which sets the context for revising by-laws for non-profit
organizations, may be found in Duties and Responsibilities of Directors of
Non-Profit Corporations by Hugh M. Kelly, Q.C. and Mark R. Frederick by the
Canadian Society of Association Executives ["CSAE"}. This
booklet is inexpensive and worth getting for any Board. The CSAE's
website is www.csae.com.
PART 2
SEEING WHY BY-LAWS ARE WHAT THEY ARE
STARTING AN ORGANIZATION THROGH A MASS MEETING
References: RONR (10th edition) s.53, Bourinot’s
Rules of Order (4th edition) Articles 51-53
The Exercise
The state of Toronto’s trees is beginning to become a
cause for concern. Hardwood trees such
as Oaks and Maples have a natural life-span of about 100 years. Many Toronto hardwoods are beginning to die
of old-age. The canopy is under
pressure because there is a missing generation of younger trees in many
areas. A group of concerned citizens is
invited to meet in the rented local library meeting room to deal with this
problem. The organizers hope that a
“friends of trees organization” will be established as a result.
In this exercise:
Start the meeting;
Elect a Chair;
Elect a Secretary;
Choose a Parliamentary Authority;
Choose the embryo organization’s mandate;
What do you need to remember about keeping order and
moderating discussion?
What issues and organizational aspects does this
exercise suggest need to be considered in the new organization’s by-law?
Space for Participants’ Notes
Note: This presentation does not constitute legal advice. For specific legal questions concerning any organization a lawyer should be consulted.
